ORDER, 1972



Interpretation of—Three
clauses of Article 5(b), whether to be read conjunctively so that conduct or
activity which was not in exercise of power or in discharge., of duty of a Government
servant falls outside the purview of Article 5(b).

Per B.H. Chowdhury,J
(R. Islam. J concurring)

Art.5(b) i.e in three parts, the first part deals with
collaboration, the second part deals with the ideology of Pakistan, and the
third part deals with the support of the elements inimical to the liberation
struggle or creation of Bangladesh. Three definite concepts have been
introduced in clause(b). It will be absurd that while collaboration will be offensive
if it is performed in the exercise of powers or in the discharge of duties hut
conduct or activities exhibiting support to the ideology of Pakistan ol.
conduct in support to the elements inimical to the liberation struggle are to
be performed in private capacity. The title of P.O. 67 of 1972 is “the
Government of Bangladesh (Services Screening) Order” and the preamble shows
that all the persons who are in the service of Bangladesh are within it and
since the object of the enactment is to make the Government institution free
from corrupt persons, collaborators, officials and other employees wedded to
the ideology of Pakistan, all activities of such persons must be performed in
the exercise of powers or in the discharge of duties.

Obaidullah Vs. Vice-Chancellor, University of Dacca. W.P.336 of 1974
(unreported), approved.


Per K. Hossain, CJ (dissenting)

three clauses cover three kinds of conduct on the part of the officer
concerned. First is that in the exercise of his power or, in discharge of his
official duties, if he does any act which assists, aids or supports against the
liberation struggle or creation of Bangladesh whereas the second clause is
regarding conduct which celibates faith in and support to the ideology of
Pakistan, and the third to the conduct which supports the elements inimical to
the liberation struggle or creation of Bangladesh and in particular occupation
forces of Pakistan. The second and third clauses, if read in the context of the
first clause, clearly indicate that they are separate and distinct, inasmuch as
the offence in the first clause could only be done as an officer in the
discharge of his duties or exercise of power, whereas the offences in clauses
two and three, the conduct manifested by the officer need not be in the
discharge of his duties or exercise of hi powers. I, therefore find that the
three clauses ye been used disjunctively and to cover three distinct categories
of purposes. For the second and third clauses there is no need of exhibition of
collaboration in the discharge of duty or exercise of power. But the act or
conduct of an officer coming within the first clause, it is to be manifested
either in the exercise of power or in the discharge duties. I am re-informed in
reading the clauses disjunctively, because these the clauses are separated
first by the word and secondly by the word ‘conduct’ at tl beginning of each of
the three clauses. If they are read conjunctively then the word con— duct’ in
second and third clauses become tautologies or superfluous. But if they are
read disjunctively all the three clauses fit in grammatically and semantically
For the pw pose the Article is directed.

University of Dacca Vs. Dr. Sajjad Hossain, 1BLD (AD) 348



Whether creates legal right—Memorandum
issued by the Government and rule relating to settlement of fisheries
incorporeal in Government Estate Manual have no story force, but these merely
provide adminis— tratives guideline and cannot e invoked for claiming a legal

Talekhal Progressive Fisherman Cooperative
Society Ltd. Vs. Bangladesh and others, I BLD(AD) 103

(1897)1 Q.B. 498.


Rules—205 and 206

Lease or licence granted by the Government—Whether
the Government is entitled to deal with its property in any manner it likes or
award a contract to any person it chooses without any constitutional limit upon
it—Lease or licence to use Government property is regulated by the State for
the welfare of its people—Lease of fishery excusably owned by the Government is
a new kind of wealth which the Government distributes by way of settlement
amongst the class of people who deserves it—In doing so the Government was to
enter into agreement but such lease agreement can by no stretch of imagination
be termed as ordinary contract entered into by two individuals as trading
venture—On the other hand, when the Government deals with this new kind of
wealth for the welfare of the citizens and regulates distribution of such
wealth by way of settlement or lease, the Government acts in its sovereign
capacity— When the authority oversteps or commits breach of rule or even breach
of principle of natural justice, the same can be challenged by filing writ

Sharping Matshajibi Samabaya Samity Ltd.
Vs. Bangladesh & ors., 7BLD (AD)1O6

A.I.R. 1979(SC) 1628; 1 BLD(AD) I 05—Cited.


Rule—265 (3)

Extension of existing lease—A lessee
has no vested right to claim extension of lease— Rule 205(3) of the Government
Estate Manual, 1958 lays down guidelines for the ohserance of revenue
authorities, having no statutory force and b3’ this rule an existing lessee
acquires no right to lay a claim for further settlement.

Matshajibi Sainabaya Satnity Ltd. Vs. Bangladesh and others, 2 BLD (HCD) 189

AIR. I 973(SC)205; A.I.R. 1979 (SC) 621 ;BLDI 98 1(AD)105; I 6DLR(SC)457; PLD I
962(SC) 108; 21 DLR(Dacca)455; A.I.R. 1973 (SC)205; A.I.R.1979(SC) 621;—Citëd.


Chapter 111 Rule 2

Settlement of khas lands —Land in which
public had rights in the disputed land, the settlement made in favour of the
plaintiff was not legally done. and as such by the impugned settlement was
correctly cancelled by the revenue authorities.

Jafar All Vs. Khagendra Chandra Dutta and
others, 3BLD (HCD)32

51 C.L.J. 18; 100 I.C. 1927(701)—Cited.